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February 9, 2017, Trial News

DOJ, Baltimore reach consent decree over police reforms

Diane M. Zhang

On Jan. 12, the city of Baltimore and the U.S. Department of Justice (DOJ) signed a historic consent decree that outlined reforms aimed at restoring residents’ trust in the city’s police department. Among the reforms are increased officer supervision and de-escalation training, as well as the creation of a special citizen task force that will enhance civilian oversight of the Baltimore police department.

On Jan. 12, the city of Baltimore and the U.S. Department of Justice (DOJ) signed a historic consent decree that outlined reforms aimed at restoring residents’ trust in the city’s police department. Among the reforms are increased officer supervision and de-escalation training, as well as the creation of a special citizen task force that will enhance civilian oversight of the Baltimore police department.

The consent decree came after months of negotiation. Chicago-based attorney Antonio Romanucci, who handles police misconduct cases, explained, “Consent decrees are negotiated settlements between municipalities and the DOJ. Initially, they come about when a municipality’s police department is accused of routinely violating the Constitution in the enforcement of the law. The DOJ then initiates a comprehensive investigation of the allegations. If, indeed, there is determined to be a pattern and practice of constitutional violations, the government and the municipality will typically negotiate a settlement based upon the findings. The alternative is a lawsuit against the municipality and a court-ordered enforcement thereafter.”

The DOJ began to review the Baltimore police department after a 2014 Baltimore Sun article claimed the city had paid millions of dollars to settle lawsuits against police officers for using undue force. Then, in 2015, 25-year-old Freddie Gray fell into a coma and died while being transported in a police van after suffering a fatal injury in custody. After the ensuing citywide protests over his death, the DOJ launched a civil rights investigation in May 2015 at the request of then-mayor Stephanie Rawlings-Blake.

Covering data from 2010 to 2016, the DOJ report, released in August 2016, found that the Baltimore City Police Department engaged in a pattern of conduct that violates the First and Fourth Amendments of the U.S. Constitution, as well as federal antidiscrimination laws. The police department took a “zero tolerance” approach to policing in the early 2000s, resulting in a discriminatory approach to policing: The report cited frequent searches and arrests without the required justification; racially discriminatory policies in which black residents were subjected to a disproportionate number of stops, searches, and arrests; and retaliation against individuals for constitutionally protected expression.

For example, between 2010 and 2015, the Baltimore police made 300,000 pedestrian stops, but only 3.7 percent of those stops uncovered evidence of criminal activity. Further, the rate of criminal activity found during stops of black residents was lower than stops of other races. However, 44 percent of those stops were made in two predominantly black neighborhoods that comprise just 12 percent of the city’s population.

The consent decree’s purpose is “to ensure that the City and BPD protect individuals’ statutory and constitutional rights, treat individuals with dignity and respect, and promote public safety in a manner that is fiscally responsible and responsive to community priorities.” One of its primary goals is to restore the community’s trust in the city’s police department “through increased transparency and public input” as well as “oversight and accountability systems to ensure that the Department will collect and analyze data on officer activities, impose discipline for misconduct fairly and efficiently, and enhance support for officers through robust employee wellness programs, law enforcement policies, training, and supervision.” Most important, the decree created a Community Oversight Task Force, which allows city-appointed members to recommend reforms to enhance and improve the current system of civilian oversight.

The decree also focuses on police procedures during stops, searches, and arrests—for example, requiring police officers to introduce themselves by name and rank and to fill out forms for each stop, recording the location as well as the ethnicity and age of the person stopped. It also requires eight hours a year of training to better equip police to effectively and safely engage community groups, the homeless, and the mentally ill. Other reforms covered by the consent decree include prohibiting officers from using chokeholds or neck holds unless deadly force is authorized; requiring all vans and police cruisers to have functioning seat belts; and mandating that officers notify a supervisor before making an arrest on minor charges, such as disorderly conduct or trespassing.

Romanucci pointed out that consent decrees can be extremely wide-ranging in terms of the reforms proposed. As such, they often are very controversial. “DOJ investigations are subject to criticism from opponents of the abuses which are sought to be corrected,” he said. “For example, police unions are at the front of the line when it comes to opposing the suggested reforms. The unions are there to protect the officers’ rights, and they oppose any changes that diminish those rights—or make them vulnerable to discipline following any allegations of misconduct.”

Despite controversy surrounding police reforms, the DOJ has also investigated—and entered into consent decrees with—police departments in Cleveland; Oakland, Calif.; and Portland, Ore. The DOJ also recently released a report on Chicago’s police department, which raises the same issues that its Baltimore report raised several months earlier.

As in Baltimore, the Chicago investigation was spurred by video of a police officer fatally shooting a black teenager, Laquan McDonald—an example of police brutality that set off protests across the city, murder charges for the officer involved, and the resignation of Chicago’s police superintendent. The city had long seen distrust between the community and its police department, but the DOJ’s report, released last month, describes the McDonald killing as a “tipping point.”

Romanucci explained, “Chicago has routinely been cast as a tale of two cities—there exist the well-off neighborhoods and the very poor neighborhoods, which consist of a high percentage of minorities. Police tend to concentrate . . . in these specific areas and have engaged in a pattern and practice of violating people's rights by performing unlawful stop-and-frisk tactics regardless of whether that individual met the constitutional criteria for a lawful stop-and-frisk. The high percentage of minorities stopped across all districts in Chicago—not just poor ones—revealed a bias in favor of stopping minorities. This longtime practice has bred extreme distrust between the police and its minority communities, resulting in an institutional spiral of disdain. Without a heavy-handed commitment to reform, Chicago will continue to see an unprecedented increase in violence and homicides which could economically and socially paralyze the city if left unchecked.”

How the DOJ will handle future allegations of police brutality and undue force remains uncertain. However, at the initial hearing for the Baltimore consent decree, the DOJ indicated that it is still committed to the consent decree under the new administration.

Nevertheless, concerns remain about Chicago because the DOJ and the city have not reached a consent decree. “There is serious concern among those in the civil rights community that the election of Donald Trump and his recommendation of Jeffrey Sessions as Attorney General, will be a significant setback to the implementation of the proposed consent decrees—namely, Chicago,” Romanucci said. “Although the mayor of Chicago and the prior attorney general reached an agreement to enter into negotiations for a consent decree, it is not the consent decree itself. Those negotiations could fail and court ordered intervention would be required. On the other hand, there is also a fear that the DOJ will fail to negotiate a deal with Chicago and leave the reform process to the city itself—which is akin to Chicago being judge, jury, and tribunal. This would be a recipe for failed reform—and a lost chance at real change.”